224 Cal. App. 4th 1263
Cal. Ct. App.2014Background
- In 2003 the San Diego County initiated a paternity action; County contracted Long Beach Genetics (LBG) to collect and test DNA as part of that proceeding.
- LBG tested samples from Leslie Falcon, her minor daughter, and Michael Patterson; in November 2003 LBG reported results excluding Patterson as the father; results were accompanied by a certified declaration and sent to the parties and County.
- The test was erroneous (result based on someone other than Patterson); Falcon did not discover the error until February 2008 when additional testing occurred; Falcons sued defendants (LBG, Esoterix, LabCorp) for negligence in November 2009; Patterson joined later.
- Defendants moved for summary judgment arguing, inter alia, the Civil Code section 47(b) litigation privilege barred plaintiffs’ negligence claim; they also argued duty and statute-of-limitations defenses.
- The trial court granted summary judgment and denied leave to amend, concluding the gravamen of plaintiffs’ complaint was communicative conduct protected by the litigation privilege; plaintiffs appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the section 47(b) litigation privilege bars the negligence claim | The negligent act was the performance of the DNA test (noncommunicative); privilege should not bar relief for a negligently performed test even if results were later communicated | The testing and the certified communication of results were made in connection with County's paternity proceeding and are privileged; the gravamen is communicative | Privilege applies: plaintiffs’ injury flowed from a communicative act; testing and related acts were necessarily linked to the privileged communication, so claim is barred |
| Whether there was a pending judicial or quasi‑judicial proceeding and participation sufficient for the privilege | Plaintiffs contended they underwent a free test voluntarily and were not knowingly participating in litigation; lack of personal service means no jurisdiction/privilege | County had filed a paternity action; Patterson executed a stipulation for testing (constituting appearance/consent); testing furthered County’s proceeding | Existence of County action and Patterson’s stipulation are judicially noticeable; testing was done to assist that proceeding, satisfying privilege elements |
| Whether defendants owed a duty of care outside the privilege (including reliance on Berman) | Plaintiffs urged duty to perform accurate testing and relied on out‑of‑state authority (Berman) to avoid privilege | Defendants argued California law bars derivative torts based on communications in judicial proceedings; California precedent differs from Berman | Court declined to adopt Berman; because privilege barred the pleaded theory, it did not reach duty questions |
| Whether the trial court abused discretion in denying leave to amend | Plaintiffs sought to add allegations about later retesting/cover‑up and gross negligence and asserted attempts to amend were timely | Defendants argued amendments were unreasonably delayed, inconsistent with prior pleadings, and would not state a viable claim | Denial affirmed: court acted within discretion given delay, inconsistency with existing pleadings, and failure to show a viable, non‑privileged claim |
Key Cases Cited
- Guz v. Bechtel Nat. Inc., 24 Cal.4th 317 (California Supreme Court 2000) (summary judgment standards and burden shifting)
- Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826 (California Supreme Court 2001) (defendant’s burden on summary judgment)
- Action Apartment Assn., Inc. v. City of Santa Monica, 41 Cal.4th 1232 (California Supreme Court 2007) (litigation privilege elements and broad application)
- Rusheen v. Cohen, 37 Cal.4th 1048 (California Supreme Court 2006) (gravamen test: communicative vs. noncommunicative conduct)
- Silberg v. Anderson, 50 Cal.3d 205 (California Supreme Court 1990) (communications related to judicial proceedings and privilege scope)
- Block v. Sacramento Clinical Labs, Inc., 131 Cal.App.3d 386 (Cal. Ct. App. 1982) (privilege applied to negligent lab analysis used in criminal proceedings)
- Wang v. Heck, 203 Cal.App.4th 677 (Cal. Ct. App. 2012) (privilege barred negligence claim when physician’s report was used in administrative proceeding)
- Hawran v. Hixson, 209 Cal.App.4th 256 (Cal. Ct. App. 2012) (resolving doubts in favor of applying the privilege)